Tefo Tefo
King’s Counsel Salemane Phafane yesterday urged the High Court to dismiss an application by Police Commissioner, Khothatso Tšooana, in which he is seeking an order directing Prime Minister Pakalitha Mosisili to allow him to resume his duties with immediate effect.
Advocate Phafane told Justice ‘Maseshophe Hlajoane that the application had been filed on an urgent basis “erroneously” hence his request for its dismissal.
Advocates Phafane and Motiea Teele collectively represent the respondents in the case, namely Dr Mosisili, Police Minister Monyane Moleleki, Deputy Commissioner of Police (DCP) Keketso Monaheng, DCP Holomo Molibeli and Attorney General Tšokolo Makhethe.
Advocate Phafane told the court that Mr Tšooana filed the urgent application late despite being aware of the appointment of DCP Monaheng as the acting Commissioner of Police.
“The real course of action in these proceedings is the appointment of the Third Respondent as the Acting Commissioner of Police.
“The applicant, in his papers, clearly stated that he knew of the Third Respondent’s appointment as Acting Commissioner on 8 April 2015.
“Following the appointment, the applicant only came to court 19 to 20 days later and comes to court seeking orders operating with immediate effect.
“He came to court on the 27th of April and moved the application the next day.
“There is no urgency at all here and if there is any, it is a self-created urgency and on this ground alone, this application has to be dismissed,” Advocate Phafane submitted.
The lawyer also questioned the legitimacy of the Certificate of Urgency signed by Attorney Tumisang Mosotho and attached to the Notice of Motion.
The certificate, he argued, did not meet the requirements of the law for it to qualify as such.
“A Certificate of Urgency has to fulfill certain legal requirements and if it fails, the application that it accompanies has to fail.
“The rate at which applications are being filed in this court termed urgent, has become a problem.
“It has not only become a problem for this court, but also in the Court of Appeal. But despite warnings by the Court of Appeal, this practice continues unabated.
“The Certificate of Urgency must show grounds of the urgency.
“It is not good enough to just say the application is urgent.
“Here the grounds are merely that the Third Respondent (DCP Monaheng) has been appointed to act in the applicant’s position while the applicant is still present.
“We submit there is nothing urgent if someone has been appointed to act in the applicant’s position.”
He continued: “The applicant also says the case is urgent because the respondents have started transferring police officers. That’s not his business.
“What he is attempting to do is clearly trying to operate under the misconception that the Lesotho Mounted Police Service belongs to him.
“The certificate of urgency falls far short of the legal requirements and as such, the application has to fail.”
Advocate Phafane also urged Justice Hlajoane to dismiss Mr Tšooana’s application on the grounds that the respondents were not properly served within the stipulated time of at least two days before the application could be moved in court.
“The application was only filed on 27 April and served on the respondents at 3:30pm that day, while the applicant moved the application the following day at 9:30am.
“The rules make it clear that one should allow the respondents two clear court days before moving the application.
“Here the applicant clearly intended the respondents not to be present.
“That service amounted to no service at all,” Advocate Phafane said.
However, the court adjourned to today for Mr Tšooana’s lawyer, King’s Counsel Haae Phoofolo, to respond to the submissions made by Advocate Phafane.